Woodlock v State of Queensland (Department of Energy and Public Works)
[2022] QIRC 481
•24 November 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Woodlock v State of Queensland (Department of Energy and Public Works) [2022] QIRC 481 |
PARTIES: | Woodlock, Lahnie v State of Queensland (Department of Department of Energy and Public Works) |
CASE NO.: | PSA/2022/914 |
PROCEEDING: HEARING DATE: | Public Service Appeal - Appointment to position at a higher classification level 24 November 2022 |
DELIVERED ON: | 24 November 2022 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
| DATES OF WRITTEN SUBMISSIONS: | Respondent's written submissions filed on 18 October 2022 and Appellant's written submissions filed on 7 November 2022 |
| ORDER: | Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived. |
| CATCHWORDS: | INDUSTRIAL LAW - QUEENSLAND - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - PUBLIC SERVICE APPEAL - Appellant requested Respondent's chief executive to appoint Appellant to a position at a higher classification level pursuant to s 149C(3) of the Public Service Act 2008 - no decision made by the chief executive within the period required by s 149C(8) of the Public Service Act 2008 - chief executive taken to have refused the request - Appellant appealed against decision - Appellant had not been acting in the position at the higher classification level for a continuous period of at least two years - whether Appellant could appeal against the decision - Appellant could not appeal against the decision because she had not been acting in the position at the higher classification level for a continuous period of at least two years - decision to decline to hear the Appellant's appeal because it is misconceived |
| LEGISLATION: | Industrial Relations Act 2016, s 562A Public Service Act 2008, s 149C, s 194 and s 195 |
Reasons for Decision (ex tempore)
Introduction
Ms Lahnie Woodlock is employed by the State of Queensland. Ms Woodlock has acted in the higher classification level position of Principal Advisor, Workplace Health and Safety, classification AO7 ('the higher classification level position'). The higher classification level position is located within Human Resources, which is a business unit of Corporate and Portfolio Strategy, which, in turn, is a Division of the Department of Energy and Public Works ('the Department').
Ms Woodlock has acted in the higher classification level position since 1 March 2021.
By email sent on 4 August 2022, Ms Woodlock, pursuant to Directive: 13/20 - Appointing a public service employee to a higher classification level, requested that she be permanently appointed to the higher classification level position. Because no decision was made within 28 days of that request, pursuant to s 149C(6) of the Public Service Act 2008 ('the PS Act'), the chief executive of the Department was taken to have refused Ms Woodlock's request ('the decision').
By appeal notice filed on 21 September 2022, Ms Woodlock, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision. Ms Woodlock annexed detailed submissions to her appeal notice.
By Directions Order dated 22 September 2022, I ordered the parties to file and serve written submissions in relation to Ms Woodlock's appeal. Both parties have complied with those orders.
In its written submissions filed on 18 October 2022, the Department raised a jurisdictional objection to Ms Woodlock's appeal. The Department submits that contrary to the relevant provisions of the PS Act, Ms Woodlock cannot appeal against the decision because she had not been acting in the higher classification level position for a continuous period of at least two years.
The question for my determination is whether the decision is one against which Ms Woodlock can appeal.
Background
The background to Ms Woodlock's appeal was summarised in the Department's submissions.
The Department relevantly submits:
·Ms Woodlock is permanently appointed as a public service officer in the position of Senior Advisor, classification AO6, Workplace Health and Safety, Human Resources;
·since 1 March 2021, Ms Woodlock has been continuously performing the duties of the higher classification level position;
·the higher classification level position is a temporary position created to meet an unexpected short-term increase in workload following Machinery of Government changes that took effect on 12 November 2020; and, as a result of those changes, many staff in the Department, including in Human Resources, transferred to other departments, the consequence of which was that an interim Human Resources structure was put in place while the Human Resource structure was reviewed;
·Ms Woodlock's current temporary placement in the higher classification level position is due to expire on 31 December 2022 which will enable work, necessary to meet an unexpected short-term increase in workload, to continue whilst the review of the Human Resource structure is completed;
·by email dated 4 August 2022, following Ms Woodlock acting in the higher classification level position for a continuous period of approximately 17 months, she submitted a written request to be appointed to the higher classification level position; and
·due to unforeseen circumstances, the delegate of the chief executive of the Department did not, within the required 28 day period, make a decision regarding Ms Woodlock's request, the consequence of which was that pursuant to s 149C(6) of the PS Act, the chief executive of the Department was taken to have refused Ms Woodlock's request.
I did not understand Ms Woodlock to dispute this summary.
The Department's submissions
The Department submits that pursuant to s 194(1)(e)(iii) of the PS Act, an appeal may be made against the decision not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher classification level for a continuous period of at least two years.
Further, the Department refers to s 195(1)(j) of the PS Act, which provides that a person cannot appeal against a decision under s 149C of the PS Act not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than two years.
The Department submits that at the date Ms Woodlock made her request, being 4 August 2022, she had been acting in the higher classification level position for a continuous period of 17 months, the consequence of which is that Ms Woodlock cannot appeal against the decision.
Ms Woodlock's submissions
Ms Woodlock frankly concedes that she has not been seconded to, and has not acted in, the higher classification level position for a continuous period of at least two years.
Ms Woodlock then goes on to make written submissions as to why the higher classification level position is needed in the long-term, and why she should be appointed to the higher classification level position.
There is no decision against which Ms Woodlock can appeal
The Department's submissions are correct.
Pursuant to s 194(1)(e)(iii) of the PS Act, an appeal may be made against a decision not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher classification level for a continuous period of at least two years.
Similarly, pursuant to s 195(1)(j) of the PS Act, a person cannot appeal against a decision under s 149C of the PS Act, not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than two years.
Ms Woodlock, as at 21 September 2022, had not been seconded to and had not acted at the higher classification level position for a continuous period of at least two years.
Whilst there may be merit in Ms Woodlock's submissions as to the ongoing need by the Department for the higher classification level position, such assertions, even if accurate, cannot vest Commission with jurisdiction to hear her appeal where no jurisdiction otherwise exists.
The appropriate course is for me, pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, to decide not to hear Ms Woodlock's appeal because it is misconceived.
Conclusion
For the reasons I have given, Ms Woodlock cannot appeal against the decision.
Ms Woodlock's appeal is misconceived and, for that reason, I will not hear her appeal.
Order
I make the following Order:
Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived.
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